Environmental Groups on DC Circuit Ruling for EPA's State Air Pollution Plans

Washington, D.C. – Today, the U.S. Court of Appeals for the District of Columbia Circuit upheld in part and vacated in part a landmark 2015 Environmental Protection Agency (EPA) rule requiring that 36 states close loopholes polluters use to emit vast amounts of harmful air toxins during a facility’s start up, shut down and malfunctions (SSM). 

The court confirmed it is illegal for polluters to evade civil penalties via an “affirmative defense” when they claim their facilities experienced malfunctions. The ruling also found EPA did not appropriately justify parts of its rule that required states to revise provisions that exempt polluters from obeying emission standards during SSM events.

During SSM events, industrial polluters, such as coal plants and oil refineries, can release extremely high concentrations of soot, smog, and toxic chemicals including ethylene oxide, hydrogen cyanide, and sulfuric acid in a short amount of time–sometimes, more pollution in a single spike than they’re legally allowed in an entire year–with impunity. In Texas alone, companies released more than 174 million pounds of illegal air pollution during breakdowns, accidents, and other SSM events. Through SSM loopholes, most of those violations escaped without consequence.

For decades, these loopholes have been decried by public health and environmental justice organizations as an irresponsible and dangerous giveaway to polluters that threatens the health of vulnerable communities, which are frequently low-income and communities of color. 

The EPA’s 2015 decision mandating 36 states close SSM loopholes addressed by today’s ruling came in response to a Sierra Club petition and after years of community advocacy, including two court decisions rejecting the same types of loopholes. The Biden Administration’s EPA has been removing loopholes from some regulations, but still, loopholes remain in states like Texas, North Carolina, and Iowa, and in many of the EPA’s own protective policies against air pollution. 

“Though we are disappointed by the decision, we remain optimistic that President Biden and EPA Administrator Michael Regan will fulfill their commitment to protect environmental justice communities from dangerous air pollution by following through on eliminating the SSM loopholes,” said Andrea Issod, a Sierra Club attorney who also represented Citizens for Environmental Justice and People Against Neighborhood Industrial Contamination. “EPA must act immediately to eliminate the loopholes across the board in all state and EPA rules to bring relief to communities that have been suffering for far too long.”

Seth Johnson, an Earthjustice attorney who represented Sierra Club in defending the EPA’s 2015 action, said the court’s ruling will help end certain loopholes that allow companies to release huge amounts of dangerous air pollution that causes severe health problems, like cancer and respiratory diseases such as asthma, and blights communities.

“It’s not just unconscionable that polluters escape consequences for these releases—it’s also illegal,” Johnson said. “It’s long past time for these illegal loopholes to be closed in all states and from all of EPA’s rules. Overburdened communities need immediate relief. We also appreciate that the decision upholds EPA’s important role in ensuring state pollution control plans comply with bedrock legal requirements.”